How the National Environmental Policy Act Has Improved Land Use Decision-making

Personal Experiences of the Author

By Rupert Cutler

As a city boy growing up during World War II in Detroit, Michigan, perhaps because of the influence of Scouting and Audubon Society outdoor activities, I decided to make wildlife conservation my lifeís work. Back then, natural resources conservation was not exactly a popular vocation; in fact, I was the only one to receive an undergraduate degree in wildlife management from the University of Michigan in June 1955.

When I studied wildlife management, the only species taught about were game species -- no mention of threatened and endangered species or watchable wildlife then. When I studied forestry, the only species discussed were commercial tree species. Concern for old growth forests and wilderness was absent, and the terms "ecology" and "biological diversity" were just coming into the scientistís vocabulary.

The Nationís population was less than half of what is it today, thus demands on natural resources were less than they are today. But the recuperative powers of natural environment were taken for granted. Rivers were treated like open sewers, or dammed, ending their fish runs. DDT was wiping out native wildlife. Cars, power plants, and industries pumped unscrubbed toxic emissions into the air. Asbestos was freely used as sound-deadening material. Farmers were paid by government to drain their wetlands. Few seemed to care.

The public was not concerned with environmental protection. We had won World War II and were enjoying the good life. The Nationís environmental consciousness had yet to be awakened. This situation changed in the 1960's, thanks in part to Rachel Carsonís wake-up call, Silent Spring. Protecting the human environment came into its own as a major political issue, along with civil rights and the Vietnam War.

I worked in Washington, D.C., during what I think of as the golden age of the American environmental movementófrom Kennedy to Carter. After editing Virginia Wildlife for the Virginia game commission in Richmond for four years, I joined the staff of the National Wildlife Federation in Washington in 1962 and attended President Kennedyís White House Conference on Conservation. Later, Lyndon Johnson provided much-appreciated leadership on conservation issues. I shook his hand at the signing of the National Wild and Scenic Rivers Act after lobbying for its passage. President Johnson signed the Wilderness Act in September of 1964.

I became an assistant executive director of The Wilderness Society in 1965 and helped initiate the process of adding new wilderness areas to the National Wilderness Preservation System. On weekends I hiked in the Monongahela National Forest and became involved in the creation of the West Virginia Highlands Conservancy. I also worked on the National Environmental Policy Act (NEPA) in its earliest versions. I was often in Senate Interior and Insular Affairs Committee Chairman Henry "Scoop" Jacksonís office. Thatís where Jacksonís staff director, Jerry Verkler, and Professor Keith Caldwell of Indiana University drafted the NEPA. House Fisheries and Wildlife Subcommittee Chairman John Dingell introduced a similar bill in the House and played the lead role in winning House passage of NEPA.

What was remarkable about the history of NEPA was the lack of interest in it by mainstream natural resources conservation associations like the National Wildlife Federation, the Izaak Walton League, the Sierra Club, and even my own Wilderness Society. We were all too busy on our own specialized agendas Ė saving a wilderness here and stopping a dam there Ė to appreciate the paradigm-shifting potential of section 102(2)(c) of NEPA that requires the preparation of environmental impact statements (EIS). NEPAís impact -- its potential to be used to stop environmentally damaging projects, through litigation alleging shortcomings in the mandatory EIS process -- took the conservation groups and the federal agencies by surprise. It created a new discipline and a new industry.

The first Act of Congress signed by President Richard Nixon was the National Environmental Policy Act, in January of 1970. Nixon signed it and several other major conservation bills into law not because he embraced natural resources conservation but because it had become good politics. Remember, 1970 was the year the first Earth Day teach-in was held in Ann Arbor.

In 1969 I left the Wilderness Society to return to the university campus and work on my graduate degrees. While an Michigan State University grad student I helped organize the 1970 Earth Day program on that campus. The doctoral dissertation I completed in 1972 on environmental litigation involving the U.S. Forest Service documented the need for the "consider-alternatives," "involve-the-public," and full disclosure requirements of NEPA. All four controversies I studied -- conflicts over proposed development of roadless National Forests land -- were characterized by Forest Service internal decision-making, no public involvement, and no effective administrative remedies. I doubt that these controversies would have gone as far as they did toward irreversible losses of wilderness values if NEPA had been in place when those cases were filed.

When I was at Michigan State I was employed as a consultant by the Forest Service to critique the first generation of environmental impact statements produced by the Forest Service. There were great differences in the quality and sophistication from region to region. Like other agencies, the Forest Service initially tried to use EISs to justify decisions already made, rather than to fairly compare the impacts of a range of alternatives and learn the publicís reaction to them. To comply with NEPA, the agency had to bring in planners from a wide range of disciplinary backgrounds including landscape architecture, hydrology, wildlife and fishery biology, sociology, and economics and find ways for them to contribute to the development and analysis of alternatives. The generalist forester found himself or herself in the company of people with different values. Thank NEPA for that.

Also during those years I served on the Michigan Environmental Review Board, authorized by a governorís executive order that also called for the preparation of environmental impact statements by state agencies. The board reviewed for the governor environmental statements written by federal agencies for projects in Michigan. For example, we recommended that the governor oppose construction by the U.S. Navy of a low frequency radio transmission project in the Upper Peninsula that would have harmed the wilderness-like forests in a vast area in the western "U.P." The project was scaled back and built in Wisconsin. This is an example of a state-level version of NEPA such as exists in several states.

When Jimmy Carter became President, I was nominated for and confirmed in the position of Assistant Secretary for Conservation, Research and Education in the U.S. Department of Agriculture. The person in this position supervised the Forest Service and several other agencies. As Assistant Secretary of Agriculture I was involved in rewriting the departmentís and the Forest Serviceís NEPA regulations, creating a new Office of Environmental Quality in the Office of the Secretary of Agriculture, and initiating and overseeing a review of the entire 191-million-acre National Forest System to determine how much unclassified, potential wilderness remained in the National Forests.

This project was called RARE II (second Roadless Area Review and Evaluation). It generated a 22-volume draft environmental statement and more public involvement than any previous federal project subjected to the NEPA process. It led to a lawsuit brought by California Governor Jerry Brown in which the judge concluded that the Forest Service had not considered enough alternatives or used enough data in its decision-making. When the Carter Administration went out of office and the Congress took over disposition of the RARE II recommendations, this lawsuit became moot. There was a lot of litigation brought under NEPA in the early years. Those cases made it clear to federal agencies that the NEPA process had to be followed.

A current example of the NEPA process at work in western Virginia is the EIS on impacts of a new high-voltage power transmission line proposed by American Electric Power, originally planned to be built through the Jefferson National Forest. The forest supervisor ruled that it could not be built on Forest Service land. The result is that it probably will be built elsewhere. This EIS is exerting a powerful influence on the ultimate location decision.

How can wildland planners cope with the current onslaught of development proposals combined with increasingly sophisticated interest group lobbying? My suggestions are pretty basic:

Design with nature. Use the latest in GIS technology and data combined with an open planning process involving interested publics to bring all available data and suggestions for alternatives to the table. (The NEPA process can be updated forever to keep up with planning technology and new ways of communicating with the public.)

Use graphics as well as words to communicate.

Create a hierarchy of priority objectives beginning with the prevention of irreversible losses of species, historic buildings and sites, views, and unique cultural values and peoples.

Re-use already developed sites ("brownfields") rather than do "greenfield" development on increasingly rare open space.

Clear as little land of native vegetation as possible, ideally only the footprint of the new building, to leave soil- and water-holding vegetation in place.

Minimize commuting distances and provide for the use of alternatives to the automobile such as passenger trains, buses, bicycles, and walking.

The preparation of environmental statements should involve collaboration among agencies to identify the least environmentally disruptive alternative, and collaboration among neighboring landowners, public and private, to optimize income to private landowners while using easements and land exchanges to protect important public values. Historically, there has been very little communication between federal land managers and local government officials such as the members of the boards of supervisors of the counties in which the federal land is located. There is much to be gained by a closer relationship between federal and local government planners and policymakers.

The plannersí balancing act involves meeting the needs of local residents (who often make their livings by extracting and processing natural resource commodities from the land) and the desires of other citizens who may live at some distance from the site but share ownership of the public lands and are entitled to a clean, attractive and productive environment. Both interests are valid. The plannerís job is to find a path that meets societyís current demands for development while not damaging the environmental legacy and options of future generations. The environmental assessment process is a key to finding that path.

Dr. Cutler of Roanoke, Virginia, is retired. He was the founding executive director of the Western Virginia Land Trust. This article is based on a presentation he made on April 13, 2000, to a class at Virginia Tech at the invitation of Professor Lee R. Skabelund on Environmental Impact Assessment.